Facts Do Matter: A Reply to Bagenstos

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Before the ink had dried on our critical assessment of new empirical research on implicit bias, 1 Professor Samuel Bagenstos had critiqued our critique. 2 Unfortunately, Bagenstos resorted to an old rhetorical gambit: refute a caricature of an opponent’s position rather than the real thing. If Bagenstos were to be believed, we took the position that the “the law should prohibit only discrimination that results from self-conscious, irrational animus” 3 and that “rational discrimination is not a proper target of antidiscrimination law.” 4 Having attributed this extreme position to us, it is no wonder that Bagenstos concludes that our arguments will “resonate strongly” with those who believe “antidiscrimination law should aim solely at punishing individuals who act on irrational racist and sexist animus” but “will be far less relevant” to those who see discrimination as “a social problem that entrenches the subordinated and disadvantaged status of particular, socially salient groups.

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